PARTIAL-BIRTH ABORTION BAN: Other than Terri Schiavo’s winning a chance at life, yesterday’s big news was obviously the passage by the Senate of the partial-birth abortion ban. President Bush is certain to sign the measure soon, so its validity will depend upon the outcome of court challenges, inevitably ending in the Supreme Court.

I believe that this bill is constitutional. However, I believe that it will be found to be unconstitutional. Let me explain what I mean.

Prompted by the bill’s passage, I sat down last night and read the text of the bill for the first time. The thing that struck me about the law — and this is something you will probably not fully appreciate until you read it for yourself — is that Congress has essentially characterized the issue as a power struggle. It’s smackdown time: Congress vs. the Supreme Court. And that is why I think that the bill will ultimately be found unconstitutional. Because the thing about power struggles between Congress and the Supreme Court is, the Supreme Court gets to decide them.

The bill argues that the Supreme Court decision that struck down Nebraska’s partial birth abortion law, Stenberg v. Carhart, was based on flawed factual findings by the trial court. The trial court had specifically found that the partial-birth procedure can minimize health risks in certain circumstances, and indeed was actually safer than other procedures. In the bill, Congress basically says that these findings were wrong. Congress goes on to make findings of its own — findings which are wholly contrary to those relied upon by the Supreme Court in Stenberg. Then, Congress states:

These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care, and should, therefore, be banned.

Translation: in your face, Supreme Court!

Congress clearly has a point. The facts underlying the partial birth abortion debate are hotly contested by both sides. A significant portion of the citizenry has a strong interest in the subject. Yet the resolution of these facts has been largely decided, not through public debate, but by some trial judge in Nebraska — after a trial that received virtually no public attention. For example, this trial received only a tiny fraction of the coverage that Kobe Bryant’s preliminary hearing has received.

But this is not about rationality. I repeat: it is a power struggle. And so I suspect that the Supreme Court will not accept Congress’s argument. The Court will reject Congress’s position politely, of course — on the surface. The Court will explain that the Stenberg decision was based only in part upon the trial court’s findings. Also important to the decision was the significant disagreement in the medical community on the necessity for the procedure, as reflected in various amici briefs as well as testimony in the trial record. Etc., etc. But if you read between the lines, the ultimate message will be: right back at ya, Congress!

I think the new law is indeed constitutional, but not for the reasons that Congress says. Congress has to accept the Supreme Court’s landmark abortion decisions (Roe and Casey) as correct statements of constitutional law; Congress can’t just say that those cases were wrongly decided. But they were. There is no point in my trying to explain why. Justice Scalia did it better than I could, in his dissent in Casey. That dissent has many wonderful quotes and should be read in its entirety, but to me the essence of his argument is that

the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.

Scalia argues that such political choices should be left to, well, the political branches of government:

The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.

But, you may say, Roe and Casey are the law now, and they have to be applied. But the problem is that the applicable standard, announced in Casey, is completely unworkable because it is so vague. Under Casey, courts must determine whether the bill places an “undue burden” upon the supposed right to choose. This “test” is so nebulous that it is no test at all.

Again, Justice Scalia explains it best, so I will quote extensively from his dissent in Stenberg. Scalia explains that whether the statute creates an “undue burden” on abortion is a

conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.

Because there are no consistent standards to be applied, Scalia argues, the argument really isn’t over application of clear, neutral principles. Rather, the argument is over whose value judgment prevails. For the dissenters,

[t]he most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

Given how contentious this issue is, Scalia concludes, he cannot understand why people persist in the belief that the Supreme Court,

armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people — where the Constitution, by its silence on the subject, left it — and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

I couldn’t have said it better myself (which is why I let Justice Scalia say it). For all the reasons in Justice Scalia’s dissents in Casey and Stenberg, I think this new bill is clearly constitutional. Unfortunately, Justice Scalia’s rational and reasoned view has not carried the day so far, and it probably won’t this time around either.

Ultimately, I am afraid that the new law will accomplish nothing other than to give us the chance to read another brilliant and persuasive dissent from Justice Scalia.

UPDATE: Xrlq has this critique of the ban on federalism grounds. I claim no expertise on the proper interpretation of the Commerce Clause, and I think it’s debatable how the current Court would rule on the question. (You can look at the comments to Xrlq’s post for competing viewpoints on the issue.) In any event, Xrlq has a plausible argument. Check it out.